RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03121
BRANCH OF SERVICE:  Army	BOARD DATE:  20150520
SEPARATION DATE:  20051124

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Calvary Scout) medically separated for right foot and ankle pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Complex regional pain syndrome (CRPS) (reflex sympathetic dystrophy [RSD]) involving the right foot and ankle was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (see rating chart below) for PEB adjudication.  The Informal PEB adjudicated CRPS (RSD) involving the right foot and ankle as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20051020	VA* - (Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
CRPS Involving the
R Foot and Ankle	8799-8725	10%	…RSD of the R Foot and Ankle…	8525	20%	STR	
			Residuals Closed R Ankle Fx…	5271	20%	STR	
Alcohol Dependence…	Not Unfitting	No VA Placement	
Tobacco Abuse	Not Unfitting	No VA Placement	
…Anxiety	Not Unfitting	Anxiety	9499-9411	NSC	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 7	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20060614 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Complex Regional Pain Syndrome (RSD) Involving the Right Foot and Ankle Condition.  While deployed, the CI sprained his ankle and was subsequently discovered to have a fracture; this lead to medical evacuation from theater.  He was treated with a cast initially and then a walking cast.  Despite treatment including medications, injections, and duty restrictions, he had continued pain and was diagnosed with RSD (the old term for CRPS), a chronic neurological condition characterized by pain and skin changes.  A magnetic resonance imaging on 22 April 2005 showed a healing fracture in good alignment as well as changes from a “bone bruise.”  He was evaluated in neurology on 3 August 2005 and found to have marked guarding of the right foot without weakness and abnormal sensation consistent with compression of a nerve in the ankle (tarsal tunnel syndrome).  However, subsequent electro diagnostic testing was normal.  The CI also had a wide based gait.  A CT scan on 17 August 2005 showed soft tissue swelling, a bony change which could reflect prior trauma, and bony changes consistent with either disuse or RSD.  A primary care note dated 19 August 2005 noted that the CI had a significant limp which disappeared when he was unaware that he was being observed.  The MEB narrative summary was dated 3 October 2005.  It noted that medications prescribed for chronic pain (non-narcotic) had been discontinued due to non-compliance.  The range-of-motion (ROM) was restricted to 6 degrees dorsi-flexion (with pain) and 45 degrees plantar flexion (with pain).  His gait was stable with mild to moderate guarding from pain and significant variability in the gait dependent upon if he was aware that he was being observed.  Motor testing appeared normal but was limited by effort.  Sensation was intact although, prior to counseling, was inconsistent and delayed.  The skin changes seen in RSD were absent.  On 7 October 2005, he was noted to have a “very noticeable limp” in one clinic and a mildly antalgic (abnormal from pain) limp in another clinic the same day.  During the MEB period, the CI was restricted to a single provider for narcotic medications due to concerns of abuse.  No VA Compensation and Pension (C&P) examination was performed proximate to separation.  However an examination 34 months after separation documented normal X-rays on 18 May 2006.  He denied instability, locking, or giving way.  On examination, the gait was normal, the ROM normal, and ankle stable.  He was tender to palpation, but the examination was inconsistent.  Skin changes typical for RSD were absent other than hair loss over the right toes.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the CRPS status post right ankle fracture condition at 10% using the code 8799-8725 (analogous to posterior tibial nerve neuralgia).  The VA rated the CI for both RSD at 20% using the code 8525 (paralysis of the posterior tibial nerve) for a severe incomplete paralysis and also for residuals of the right ankle fracture at 20% at 5271 (limited motion of the ankle).  The Board first considered if the right ankle fracture residuals were separately unfitting.  The Board noted that the ROM was reduced on formal testing, but that the CI demonstrated an inconsistent examination to multiple examiners.  In addition, a change in the gait when the CI was not aware that he was observed was clearly documented.  Finally, on an examination remote from separation, the CI had a normal gait and essentially normal examination of the right ankle.  The Board determined that the evidence does not support the addition of the right ankle fracture residuals as a separately unfitting condition at separation.  The Board then considered the CRPS (also noted as RSD) condition.  The neurological examination showed a sensory deficit which was not present on formal electrodiagnostic testing and which was normal at the time of the remote VA C&P examination.  No skin changes consistent with CRPS were documented other than hair loss over the right toes at the remote VA examination.  Again, the Board observed that findings were inconsistent between examiners and dependent upon whether or not the CI knew that he was being observed.  The Board also noted the poor compliance with treatment and the concern of drug seeking behavior.  The evidence does not support the presence of CRPS at other than a minimal level of disability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the CRPS condition.
Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that alcohol dependence, tobacco abuse, and psychological factors (anxiety) were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  These conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  In addition, alcohol dependence and tobacco abuse are not physical disabilities IAW DoDI 1332.38 E5.1.2.9.1.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the CRPS condition and IAW VASRD §4.124a, the Board, by a majority vote, recommends no change in the PEB adjudication.  In the matter of the contended alcohol dependence, tobacco abuse, and psychological factors (anxiety) conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140620, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

 SAMR-RB               

DEPARTMENT   OF THE ARMY
ARMY  REVIEW   BOARDS   AGENCY
251  18TH  STREET   SOUTH,  SUITE  385 ARLINGTON,    VA   22202-3531

MEMORANDUM   FOR Commander,   US Army  Physical  Disability  Agency
(AHRC-DO),  2900 Crystal  Drive, Suite 300, Arlington,  VA  22202-3557

SUBJECT:   Department  of Defense  Physical  Disability  Board of Review  Recommendation
for XXXXXXXXXX,  AR20160003303   (PD201403121)

I have reviewed  the enclosed  Department  of Defense  Physical  Disability  Board of Review  (DoD PDBR)  recommendation   and record of proceedings  pertaining  to the subject  individual.   Under the authority  of Title 10, United States Code,  section  1554a, I accept the Board's  
recommendation   and hereby deny the individual's  application. This decision  is final.  The individual  concerned,  counsel  (if any), and any Members  of Congress  who have shown  interest  in this application  have been notified  of this decision by mail.